Bradford v Duffy & Anor [1990] QSC 81

.~ 10 20 C 30 C) 40 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE THOMAS BRISBANE, 28 MARCH 1990 \ REVISED COPIES ,ISSUEO•~,. ~ Court Reporting Bureau Oate:dJ.// 3 J fO _ _! No. 3618 of 1984 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: CRAIG JOHN BRADFORD -and- HOWARD JOHN DUFFY -and- FIRE AND ALL RISKS INSURANCE CO. LTD. JUDGMENT Plaintiff Defendant Defendant by election HIS HONOUR: The plaintiff was injured in a road accident on 3 September 1982. He was riding his motor cycle along Hawthorne Road at about 7.30 p.m. when the defendant turned across his path. The defendant failed to keep a proper ::·•· lookout, turned across the line of on-coming traffic when he should not have done so, failed to activate his trafficators at any reasonable period before turning, and was drunk. He also engaged in the pretence that his wife had been the driver, but several bystanders observed the exchange of positions by the 10 20 30 40 5o defendant and his wife after the event. I do not propose to 5 o 60 say a great deal about this issue. The defendant was in my view guilty of quite gross negligence that caused this accident. I accept the evidence of the plaintiff's witnesses, including in particular Irene Govt. Printer, Qld. 1 60 -- 1 of 14 -- 10 20 30 40 50 60 Robertson, Mr·. Sperling and Mrs ... Percy. .The defendant Is. de facto ·wife, Mrs. Leonard, gave evidence claiming to have been the driver, but I do not accept this on.the evidence that I have heard. I will observe that her account~· in any event, discloses negligent driving on her part" for which the defendant would be vicariously liable and for which the defendant by .election would in turn be liable. However, I need not ··explore questions of amendment as I am satisfied the defendant's negligence caused this accident and that the plaintiff was not guilty of contributory negligence.· I find that the collision occurred after the defendant's vehicle had crossed over the centre line, probably when that vehicle was about half-way over the centre line, at an angle something like that described by Mrs~ Percy. I turn to the question of damages. The plaintiff was a 20-year-old Army craftsman· who had just completed a four-year apprenticeship in fitting and turning. He suffered a closed head injury with cerebral oedema which has left him ,·. with serious and permanent brain damage. He also suffered .. fractures to his neck, C6, right elbow, left scaphoid and left first metacarpal. These orthopaedic injuries, although serious enough in themselves, a·re relatively insignificant when viewed alongside the consequences of the brain injury. Dr. Maguire estimates the effect of the orthopaedic and other motor problems to represent a 25 per cent disability of the right arm, 7 per "cent of the left arm and 25 per cent of the right leg. Dr. Tuffley expressed lower percentages but was of the view that there was a total bodily loss of function of about 20 per cent. On any view there are quite serious physical sequels to the accident, but the matters which are of Govt. Printer, Qld. 2 10 ·O 20 30 0 040 50 60 -- 2 of 14 -- I 1., 10 20 () 30 \) '-··- 40 50 greatest importance are the effect upon his_ thought processes and his c:::apacity to act to his_proper potential in relation to his intelligence and personality. After spending one month in Princess Alexandra Hospital, two weeks of which were in intensive care, he was transferred to 1 Military Hospital in Brisbane and later to 2 Military Hospital in Sydney. Various rehabilitative procedures followed, but after early improvement it became clear that he could not effectively be retrained. He has permanent retrograde amnesia of about two weeks and 10 post-traumatic amnesia of about nine weeks. i There is frontal : 20 lobe damage and serious short-term memory loss. There is a plethora of medical evidence and it is sufficient to say that his memory processes have been assessed . as borderline His co-ordination, mobility and agility are defective. affected. 30 He suffers anxiety and his self esteem has fallen~ i He has virtually total insight into his condition although he sometimes smiles inappropriately. He moves slowly with a limp and his balance is affected probably from mild hemiplegic symptoms. He cannot reliably recall consecutive directions and needs too much supervision to do any but the simplest tasks effectively. He can handle money in a superficial way but cannot exercise adequate judgment in planning expenditure. I do not think that he can adequately manage his financial affairs and that a protective order is desirable. His father likened his spending of money to the drawing of water from a tap. I think it desirable that a fund be set up from the damages that I shall award, to be administered by the Public Trustee. His problems include impaired concentration, motivation, 40 50 60 60 Govt. Printer, Qld. 3 -- 3 of 14 -- . 1 j udgment and foresight, and these multiple deficits are complicated by pe~sonali ty change. I accept ·that he is . . totally commercially unemployable. There was some·conflict of medical opinion as · to · whether he would be capable of getting .. . back into the workforce such as by undertaking light labouring 10 work. i In fact, he attempted to do so on a number of occasions! 10 20 and all attempts failed. He attempted to work as a barman for two days, as· a labourer -for half a day,· painting boats for one and a half days and clea·ning laundromat machines for one m·onth. On all of these occasions he was stood down and apparently found not to be coping adequately. After a good deal of attempted rehabilitation he followed ., -,- a· wandering lifestyle for.several years, travelling around Australia. He.met his present wife in Townsville about a year ago. · They married about six months ago and are now living on 30 a count~y property in an area outside Wagga. The landlord app 0 ears· to be· charitably motivated,· and rent comrpises · about · $20.per:week for an old dwelling situated upon the property of 40 50 60 ' . a friend. His plans, which I regard as realistic, are to live with his wife in the country, raise a family and to help out in the growing of vegetables.and herbs. This is not proposed on a commerc:i.al basis but wou.ld · no doubt reduce. expenditure on food ' and provide a pleasant enough lifestyle. They presently live .. have mentioned. that in this way in the area I It is likely ,, ' : they will acquire a property of their own out of the damages to be awarded and live in the Mullumbimby district or elsewhere if that seems more desirable. I mention that · it seems desirable that the Public Trustee or his delegate should make a sufficient sum available out of the funds to . facilitate any Govt. Printer, Old. 4 20 30 40 50 60 0 0 0 0 -- 4 of 14 -- 10 20 30 c\ 40 50 60 such reasonable arrangements . .I .. regard his incapacity to work as a sequel to the injuries he sustained. .The substantial preponderance of the evidence is that he is incapable of anything more demanding than sheltered-workshop-type work. This is a case of a promising career that has been totally destroyed. He was born and raised in the Narrandera district of New South Wales. He has caring parents with solid country values and strength. They have been very supportive at all times. He showed average abilities at school. Upon completing his Intermediate in Year 10 he joined the Army as an apprentice craftsman in .January 1979. Shortly before the accident he had successfully completed the technical requirements and the training required to complete his apprenticeship. In fact, he was awarded the necessary qualification after the accident. The fact that he was accepted into the Army in this particular intake is an indication of some capacity. Different figures were given, but it is safe to say that after initial screening the applicants were narrowed down to about 3000 to 4000 and ultimately only 125 to 150 were successful in being accepted. He showed stability and good performance in his work. His career path was direct and uncomplicated~ By the time of the accident he had impressed those around him. Captain Gammon describes him as a good soldier, and as slightly above the average tradesman with good work quality.. He considered him to be above average through appraisals from multiple sources and assessments. In short, the plaintiff was highly regarded. He had been permitted to attend a corporals' course which is an unusual privilege for someone who had not then completed his appren~iceshiP,. Govt. Printer, Qld. 5 10 20 30 40 50 60 -- 5 of 14 -- -·· . . , The accident has converted him from a happy, bright, outgoing young man to a tense, sometimes irritable person who • • • • I • rightly resents other people who think, or who seem to him to· think that he is stupid. In assessing damages 10 I amenities of life,· it is for pain, suffering and loss of fair to say that his prospects of a 20 ., ! good and happy life were high. He is coping with his present way of life but a little sadly and ruefully. His recent marriage is a forward step in moving closer to a normal lifestyle, but it carries with it many risks and stresses. It serves to indicate, however, that he can probably maintain a successful relationship with a member of the opposite sex and - ' - that he has the prospect of family life, including parenthood . . (which is imminent). He is able to move around freely and he will obtain a limited degree of pleasure and activity in his 30 '1:tfe. The award for this component should therefore be 40 50 60 t"empered by regard for those considerations. I shall include . ' $75,000 under this head. I turn to past economic loss. This will require - . , -· - assessment from the period when he was discharged from the Army - namely 20 October 1983 - to the present date . ., Curiously, in a real sense the plaintiff has not suffered - ' much economic loss because the Army's built-in benefits have given him the benefit of "invalidity retirement pay", which is not greatly less than the salary he would have been paid. He ·- 7 . . . has in fact been paid over $100,000 (gross) from that source since being accepted as eligible under that scheme. That -· ·-· ., entitlement is ongoing and, prima facie, permanent, and it is . ' not repayable to the department. It can be reviewed if the . ·, ' ... - ~ percentage of incapacity for civil employment is considered to Govt Printer. Qld, 6 10 20 30 40 50 60 0 /~ \J 0 -- 6 of 14 -- 10 20 30 C 40 50 have altered, but that does not seem to be a live prospect in the present case. It is a benefit conferred under the Defence Force Retirement and Death Benefits Act 1973. It is not in the nature of compensation and there is no requirement to repay any of it to the department. It seems to be a benefit of the kind identified in Espagne's case (1961) 105 C.L.R. 569 as intended to be retained by the recipient. By the same token, he has to a substantial degree prematurely obtained the benefit of the DFRDB scheme. I consider that he will not be entitled to a substantial assessment for loss of any future entitlements under that fund. This relates to a claim advanced on the footing that the assessment needs to be increased for such loss on the assumption that he would have stayed in the Army for a period of 20 years and then gone out with benefits under the DFRDB scheme. In point of fact, if he had remained in the Army and risen to higher rank, his benefits from that fund would turn out to be slightly higher than they will now be, although the evidence is not entirely satisfactory on this point. He would also have had the option to convert part of these benefits to a lump sum or to take them all in fortnightly payments. I shall therefore in due course make a further allowance for those matters, but they will not be large because he will continue to be in receipt of substantial DFRDB benefits at the projected retirement date in any event. Indeed, he will be able to retain the benefits he has already received and will continue to receive them permanently without any deduction from his damages. To this extent the present case affords an example of the unrealistic results that can flow from the application of Espagne's case. This sometimes follows under our present 10 20 30 40 50 60 60 Govt. Printer, Old. 7 -- 7 of 14 -- 10 20 30 40 50 60 overlapping systems of benefit and compensation to which I ' - referred in another context in Dabinett v. Whittaker [1989] . . 2 Qd.R., 228, 231-232. On the present state of the authorities , . these benefits were simply not deductible. The authorities are conveniently collected in paragraph 8. 5. 04 of Luntz- _A_s_s_e_s_s_m_e_n_t __ o_f __ d_a_m_a~g..__e_s __ f_o_r_=p_e_r_s_o_n_a_l __ i_· n_j_u_r_.._y ( 2nd ed.) . The position, however, is different in relation to any future alleged loss of benefits from the DFRDB Fund. brings into issue those very benefits. Such a claim I turn then to the actual assessments. He was kept on full pay until his discharge on 28 October 1983. Thereafter he has been unemployed and, as I have mentioned, his payments from the Army are not to be brought into account. The assessment will therefore be on the basis of total loss of employment. On the assumption of continuity of employment in the Army and reasonable promotions to date there is a prima facie net total loss of $110,350. However, counsel for the defendant rightly points to the fact that this includes an amount allowed for uniforms and that the bulk of that allowance might reasonably be expected to be expended on uniforms. Accordingly about $5 per week should be taken into account in favour of the defendant over this period. Similarly the figure I have mentioned includes a 5.5 per cent of wages component that would have been deducted for the pension scheme. Counsel for the plaintiff made submissions which tend to reduce that to a 5.2 per cent figure when one takes into account the question of income tax. In all events it seems clear that a total figure of something like $7,500 is warranted as a deduction in favour of the defendant from the prima facie amount that I have Govt. Printer, Qld. 8 10 /', \ ___ ) 20 0 30 0 0 40 50 60 -- 8 of 14 -- I I ': I 10 ''I mentioned. I should also allow for other general contingencies such as other trauma or a change of direction, taking into account the relatively high fallout rate with respect to craftsmen in the Army. I also note that the pay obtained as a fitter in the Army with the rank of sergeant is considerably higher than rates paid to fitters in the open community. Taking all those matters into account I think the appropriate assessment of damages between discharge and the present date is $95,000. I turn to future economic loss. If he were presently 20 '1 employed in the Army at the rank of sergeant he would be 30 50 60 receiving $433 per week net. Once again the uniform allowance and necessary contribution to pension needs to be brought into account, and this in round figures reduces the earning capacity to $405 net per week. The plaintiff planned to spend 20 years in the Army, and I think it probable that he would have done !so, although a degree of speculation is called for in coming to that conclusion. The figure of $405 per week over the remaining period of nine years, which would complete the 20 years engagement, would yield a figure of about $153,000 but this requires consideration in the light of general contingencies. The prospect of promotion to warrant officer is of course a contingency that would tend to increase the award. There are, however, countervailing contingencies such as the uncertainties of life and the fact that if he had not stayed in the Army his earnings might have been less. I would therefore propose to allow $145,000 for this component of damages. There is then a further component to be allowed for the earnings that he would have made in the open community after Govt. Printer, Qld. 9 10 20 30 40 50 60 -- 9 of 14 -- 10 20 leaving the Army-at age· 37, having served for-20 years. The current award rate for fitters is $332 gross or $270 net~ · I have done -various· calculations in this respect and; would· note that the present· asse-ssment is one where there will ; be the immediate·payment of damages in respect of· a period that-will not commence · for another nine years. It is very difficult to f·ix a suitable multiplier. Those mentioned to me were 15 years by defence counsel and 20 years and indeed - longer by the plaintiff·' s counsel. ·· I· have made my calculations in the first instarice' a·ssuming a 1-5 years 'rnul tiplier calculating ·the present value of $270 per week for a · period of · 24· years and then deducting the value of the same rate of pay for a period of nine years. That in theory would cover the period 1999 to 2014. It would yield a figure of $96,660. A similar exercise covering 20 years, namely from·age 37 to 57, yields a figure of 30 ~$1'16, 100 .. ·· 40 50 60 ....··· _; 'Now this plaintiff may well have opted for the country life after retirement ·from the Army, and whilst his lifestyle 1nay·have been·more·enjoyable his earnings would·then have been So :c as ~- one projects more and more remotely- into the future one· should, I think, make ·more and more allowance for the contingencies·of life. Looking so far ahead I would allow - - ,. . a: further ·component for this aspect of the damages in· the sum of $90,000. There remains the issue that has been described as loss of pension~ This, ·· I · think;· is:. meant 'to refer to his loss of entitlements on a notional departure · from the Ariny in - nine years'· time.· An-exhibit shows that he would at that stage have had·· the option 'td take· a · lump sum payment as part - of that benefit ·and that "if'he· did so the quantum of the fortnightly Govt. Printer, Qld. 10 10 0 20 0 30 0 50 60 -- 10 of 14 -- CJ 0 10 20 30 50 payments thereafter would be correspondingly reduced. maximum lump sum- -that could be taken would. be $65,000. , The I have earlier adverted . to this , aspect of the case and. taken into account that he is already and prematurely in receipt of benefits from the same fund. I think that he is entitled to damages in this . area · only for .the increment or the greater benefit that he would. have received in the future over and above what he is already entitled to. receive,. and will continue to receive. Similar matters were considered by judges of this Court in Saunders v. Newman, No.1462 of 1981, (a decision, of_ . McPherson J.) and Miller v. Soldo, No.1299 of 1980, .. (adecision of Williams J.). In those cases relatively small sums were assessed on what I regard as a comparable al though not identical situation. It seems to me that the evidence does not establish a substantial loss in this respect. The benefit of taking part of the benefit as a lump sum .is, I suppose, a financial advantage, but when one considers that it correspondingly .. reduces the fortnightly benefits to a figure lower than tho.s,e that he is now receiving,. it can be seen that . there should . not be any substantial assessment for that particular element. I,p~opose to allow a further $5,000 as dam?'gesfor loss of advantage in respect of the DFRDB entitlements in the event of his staying in the Army until his 20 years service was complete. I have been asked to make an assessment of the Trustees' costs in the event that a protection order is made. In earlier decisions, including Fox .v. Commissionersfor Main Roads [~988] 1 Qd. R. 120, I indicated why_ .;c regarded sue~,, assess~e~ts as inappropriate. Since:then,. however, a numbe;r- of other judge$ 10 20 30 40 50 60 60 Govt. Printer. Qld. 11 -- 11 of 14 -- 10 sitting alone hcive taken·· a contrary view, including decisions in Weggert- v. Dittman [1988l 2· Qd.R.: 228 and Mullins ·v. Duck [1988] 2 Qd.R. 674. ·whilst the position remains arguable, in the interests·of certainty and consistency I think it desirable that I fall into line with what now seems to be· the general practice of members of this Court. Accordingly, I shall make the · assessment ·. that is sought. I · understand both counsel to agree•· that this is the · appropriate course to take. 1·have been asked to assume that the Trustees' costs in Queensland would be similar to those which have been described · 20 ·by· the Trustee in- New· South Wales in an exhibit. This· is•·· a very inexact ·exercise. I have proceeded notionally on a· basis of a: fund' of about ·$450, 000, which · would lead to initial char~es of $10;500. Income would then·. be earned which would · diminish as the fund was used for the benefit of the plaintiff. 10 20 30 ·"I·. have ·done various calculations and in the end will award a 30 40 50 ·similar.amount to cover future commission as the amount of the initia-1 charge. ·In short, I assess future costs of the Trustee at $ 21 ~ 000 .' ·, In re.:Eation to ·. interest there should be interest at 6 per cent for five years on $30,000 of the award for pain, suffering and loss of amenities of li£e. With respect to past economic cost counsel for the : defendant submitted that interest should be confined to the amount of the difference between the economic loss and the invalidity pension benefits actually received. Counsel for the plaintiff submitted that Espagne's case requires that those payments be not brought · ·into account for the benefit of the defendant. This is, I think, a difficult area. I would not, assuming I have a discretion to exercise, be prepared to order the defendant to pay interest on 50 0 0 0 60 60. Govt. Printer, Qld. 12 -- 12 of 14 -- 10 20 30 C'· 40 50 60 a loss that - the plaintiff has not. really suffered. I . . appreciate that in principle the beriefits, that he has received do . not cause a deduction to the damages to which. he becomes enti tl,ed from the defendant, but I do not think that there ought to be an assessment of interest when -the plaintiff. has continued to receive something in the nature of a replacement of his wages and when.he has not been out of pocket in relation to that aspect of the case. On this point, whilst I appreciate that the analogy relates to different legislation, I refer to the common practice of deducting from interest payments the sums that a plaintiff-receives by way of Workers' Compensati~n which are deemed by the courts in thes_e exercises as bearing the character of earnings or something. in substitution of earning capacity. I have no wish to extend the anomalous results that can follow from application qf Espagne's case_ any further than absolutely necessary. I would therefore confine interest in this area to the difference between the loss.that,I have assessed ( namely $95,000) and the amount of the net benefits which he has received from the fund (approximately $92,000). Accordingly I shall assess additional interest for five years at 6 per cent on $3,000. The _award may therefore be summarised: Damages for pain, suffering and loss of amenities Past economic loss Future economic loss Special damages as agreed (which damages are subject to a charge under. Commonwealth legislation) Trustees' costs Interest Govt. Printer, Old. 13 $ 75,000.00 95,000.00 240,000.00 39,463.12 21,000.00 9,900.00 10 20 30 40 50 60 -- 13 of 14 -- 10 20 I 30 40 50 60 There will be judgment for the plaintiff for $480,363.12 with costs to be taxed. Counsel will submit · to my Associate within 24 hours a draft order incorporating the direction that the money be paid to the Pub~ic Trustee. If there is any dispute about its form counsel may reappear before me. If counsel are in agreement the order will be as per draft initialled by me. Govt. Printer, Qld. 14 10 ()20 0 30 0 50 60 -- 14 of 14 --